Brexit: What’s in Pandora’s Box for asylum seekers and victims of human trafficking?

Guest Blog by Markella Papadouli from the Aire Centre: Advice on Legal Rights in Europe – one of our wonderful Symposium Lecturers addressing our #Focusonchildren theme posed on day one of the symposium held at St Catharine’s College,  Cambridge   and some of the challenges to legal protection for minors in particular which are currently posed by Brexit.

Markella Papadouli
Markella Papadouli

In a Greek myth so very well known, it has become a cliché, Pandora, was a very beautiful woman that Zeus, the father of all Gods, sent to earth, as a gift to humans, with a locked box.

The contents of the box were unknown to Pandora. Zeus had given her clear instructions not to open it unless expressly told to.

But Pandora could not resist the temptation and opened the box, only to release numerous worries and sorrows, which fell upon mankind.

When the UK public voted for Brexit, they did so with a significant measure of uncertainty, and curiosity, amongst many other factors. Pandora’s box was opened, letting out a complex combination of worries and concerns.

From my perspective as an EU lawyer, some of the worries concern asylum seekers and victims of human trafficking.

First, asylum

Since the very inception of the A common European Asylum system (CEAS), the UK has been given the opportunity to “pick and choose” the level of its engagement with the laws and policies it wanted to embrace.

The UK opted into the first phase of the CEAS. It took a different view of the second phase, choosing to remain out, with the exception of the Dublin III Regulation, which the UK is a part of.

The Dublin Regulation, sometimes referred to as the “revolving door of Europe”, generally requires that asylum applications be processed in the first EU country where the asylum applicant enters.

There are several family reunion criteria in the Regulation but the way the Dublin system has worked in practice so far is to keep the sheer numbers of asylum seekers at the periphery of the EU, by enabling countries in the north to return asylum seekers to the country they first entered. For obvious reasons, this rule disproportionately affects Member States located at the external borders of the EU such as Italy and Greece.

The Dublin system is based on the assumption that EU Member States are applying the CEAS standards in a uniform way, an assumption that is of course false due to the fact that different countries such as the UK picking different levels of legislative engagement with the system, and other countries (such as Greece and Italy) offering, in reality, poor reception conditions and procedural standards.

This resembles a cacophony rather than a harmonious union.

If one fast forwards now to a future when the UK has already left the EU, this also means that the UK is no longer a part of the Dublin system

The UK and the EU could, in theory, sign a ‘Dublin-style’ agreement (as the EU does with countries such as with Switzerland, Norway, Iceland etc). But that seems unlikely, because the Dublin style agreements are premised on free movement rules and being part of the Schengen area, which the UK is likely to avoid.

Could the UK sign side deals with individual EU countries? For instance, could it send asylum-seekers to France or Greece on the basis of bilateral agreements?

This seems even less likely. Existing case law of the Court of Justice—C-114/12: European Commission v Council of the European Union, makes clear that the EU as a whole has exclusive competence over the allocation of asylum-seekers as between EU Member States and third countries.

Therefore with ‘Brexit’, the UK may find itself wholly outside of a system for regional management of asylum seekers.

The UK is already an attractive destination for asylum seekers.  It may become even more so.

Firstly, as a more attractive direct destination for asylum seekers who are wishing to avoid the EU entirely.

Secondly, for asylum seekers who have landed in countries such as Greece and Italy where reception conditions are poor. Asylum seekers may have more motive to travel onwards to the UK, and the UK will face obvious difficulty returning them to the county of first arrival.

More asylum seekers is exactly the opposite argument from the one that was raised during the Brexit referendum debates.

I have not seen the UK even beginning to consider the implications of this.

Furthermore, the Dublin system offers the possibility to unaccompanied children seeking asylum in one Member States to join their parents or other family members legally resident in the UK.

Would this principle be fully adopted in the UK following ‘Brexit’?

The UK would then need to put in place its own legal structures to ensure that fundamental human rights are respected and minimize the impact of this Pandora’s box worry.

Trafficking

A concern about children asylum seekers and immigrants leads to the second set of worries, around victims of human trafficking (VoT).

Currently, with the UK being an EU member, a VoT in principle, is able to rely on EU law directly before a UK Court.

In UK domestic law, the rights of victims of trafficking are at present relatively underdeveloped. Lawyers argue that there is very little in domestic law which provides for victims rights; since the vast majority of protection for victims so far has been achieved by using European law.

In a UK universe where EU does not exist, victims would have to depend on the Modern Slavery Act, which with few notable exceptions, provides for a “top-down” solution to trafficking.

This relies on state action and is ungenerous when it comes to victims’ individual rights.

A good example of how the loss of EU would impact trafficking victims can be given with employment law. Victims of trafficking until now were able to depend on EU law to recover compensation from their traffickers, because EU employment law is more flexible in respect of illegal work and women’s rights.

Leaving the EU may also mean losing the EU Anti Trafficking Directive. Parts of the Directive have been transposed into domestic law, but some other parts have not.

The EU Anti Trafficking Directive provides important safeguards for victims of trafficking such as the principles of non-punishment and non-prosecution of victims as well as the notion of early identification.

In my opinion one of the most striking divergences is the explicit reference by the EU Trafficking directive to unaccompanied minors. Indeed, the EU trafficking directive makes specific reference to unaccompanied children in preamble 23 (particular assistance, support, guardianship, durable solutions) and Article 16 (MS should take necessary measures to ensure specific, durable, actions to assist and support child VoT taking into account special circumstances of the child victim).

Unless mirroring provisions are incorporated into UK law soon, dealing with the host of issues above and further issues such as guardian appointment, unaccompanied children victims of human trafficking may suffer a great loss due to Brexit.

A loss both on paper, in terms of the legal protections, and on the ground, in terms of the more mature EU funded institutions and groups which tackle human trafficking: such as Europol, Eurojust and other pan European criminal justice tools such as the European Arrest Warrant.

Last but not least I want to make a reference to those victims of human trafficking whose immigration status may be affected after Brexit: European Union citizens whose right to reside in the UK is at best uncertain and potentially removed.

Victims of human trafficking are already vulnerable. A very interesting research done by Anti Slavery showed that people with irregular migration status in the UK are four times less likely to be identified as VoTs and end up missing out on protection and support. This enables trafficking to remain a hidden crime, its perpetrators to escape justice and victims to be pushed to re-victimisation.

Let us not forget that the risk goes both ways – UK citizens can find themselves trafficked into other European countries – as other EU countries may choose to reciprocate any UK measures that are less favorable to their nationals.

 These are just some of the worries when it comes to victims of human trafficking. The allegory of Pandora’s Box is that we do not fully understand what has been unleashed.

 Conclusion

The key notion that should inform all discussions on Brexit and these two particular categories of individuals is that they are vulnerable and this is undisputable.

Asylum seekers are vulnerable. The ECtHR beautifully summarized the vulnerability of asylum seekers in the case of MSS v Belgium and Greece by recognizing that Mr MSS “was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.”

Victims of human trafficking similarly have been severely traumatized. They have lost their freedom, they have been deceived and importantly, they have lost control over their own lives.

With hundreds of people reaching the European shores everyday, fleeing their war torn countries, where will the UK stand after Brexit? And where will we stand, while the UK decides?

Pandora’s myth may suggest an answer. Cliché as it may sound, in the myth, Zeus hid in the box something else. Hope.  And hope remained in the box, because life without hope would be unbearable in the face of all troubles unleashed.

In the face of the Brexit challenge we, as human rights advocates, must not lose hope.

And we must translate that hope into determination.

Determination to do our jobs, each one of us contributing their own way, to make sure that the standards adopted post Brexit are set high, and to counter the troubles unleashed.

Blog republished on CCARHT pages originally published on the Aire Centre’s website http://www.airecentre.org with kind permission of the author.

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Cambridge Centre for Applied Research in Human Trafficking

The Centre for Applied Research in Human Trafficking is a network of practitioners, experts, policy makers, enforcement personnel, lawyers many of whom specialise in Human Rights, advocates, writers and academics concerned to understand the matrix of Human Trafficking and to enhance the effectiveness of addressing this insidious, global and ubiquitous form of human rights violation. The current director of the Centre is Dr Carrie Pemberton Ford, who can be contacted on carrie@ccarht.org. Dr Pemberton Ford is available for consultancy and research projects from time to time and welcomes invitations to participate at conferences which address this pressing and most perplexing challenge of our time. The Centre has no political affiliation, and seeks independence in its research processes which it brings to peer review. We are currently recruiting some more experts to contribute to our blog on our renewed site. If you would like to be one of those bloggers ( a contribution a month) please be in touch.